The court then concluded that it would be in the interest of
justice to transfer the petition to the Northern District of New
York under 28 U.S.C. § 1631 as a § 2255 motion. The Second Circuit
has held, however, that when a petitioner had never filed a §
2255 motion, a district court may not recharacterize a motion
purportedly made under some other rule as a § 2255 motion unless
the district court finds that, notwithstanding its designation,
the motion should be considered as made under § 2255 because of
the nature of the relief sought, and offers the movant the
opportunity to withdraw the motion rather than have it so
recharacterized. Adams v. United States, 155 F.3d 582 (2d Cir.
1998).

By order dated November 14, 2001, the court informed
petitioner that it decided to recharacterize her § 2241 petition
as a § 2255 motion and transfer it to the Northern District of
New York. In a letter dated November 30, 2001 petitioner
consented to this proposed disposition of her § 2241 petition,
and the case was transferred to this court by order entered
January 15, 2002.

The Second Circuit has adopted the doctrine of equitable
tolling in the context of AEDPA's statute of limitations
provisions. Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000).
In order to equitably toll the one-year period of limitations,
petitioner must show that extraordinary circumstances prevented
her from filing on time. Johnson v. Nyack Hospital, 86 F.3d 8,
12 (2d Cir. 1996). "[A] petitioner's own behavior . . . may
. . . fatally undermine his claim that `rare and extraordinary'
or `exceptional' circumstances warrant equitable tolling."
Valverde v. Stinson, 224 F.3d 129, 133 n. 3 (2d Cir. 2000).
This is certainly true in the case at bar where in paragraph 6
of her habeas petition she "contends that 28 U.S.C. § 2255
provides an inadequate remedy. Since Petitioner is out of time
to file a Sec. 2255 motion, relief sought pursuant to Sec. 2255
is unavailable."

A petitioner's failure to raise a claim of error at trial or
on direct appeal constitutes a procedural default that bars
collateral review absent a showing of both good cause to excuse
the default and ensuing prejudice. United States v. Frady,
456 U.S. 152, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982); Douglas v.
United States, 13 F.3d 43, 46 (2d Cir. 1993). The lack of
precedent for a position is different from cause for failing to
make a legal argument. Even if the law is against a contention,
a party must make the argument to preserve it for later
consideration Bousley v. United States, 523 U.S. 614, 118
S.Ct. 1604, 140 L.Ed.2d 828 (1998); Engle v. Isaac,
456 U.S. 107 at 130 n. 35, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982). Cause
means some impediment, and petitioner does not contend that any
outside force impeded her legal defense in 1997. The lack of any
reasonable basis for a claim may constitute cause, Reed v.
Ross, 468 U.S. 1, 16, 104 S.Ct. 2901, 82 L.Ed.2d 1 (1984), but
the foundation for Apprendi was laid quite some time ago.
Other defendants have been advocating Apprendi type arguments
ever since the Sentencing Guidelines came into being, and in
McMillan v. Pennsylvania, 477 U.S. 79, 106 S.Ct. 2411, 91
L.Ed.2d 67 (1986), the Court addressed the merits of a
comparable argument. In fact, the touchstone of the Apprendi
reasoning appeared at least as early as 1970 in In re Winship,
397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). Furthermore,
before the Apprendi decision was announced, petitioner could
have used the cases later cited in the Supreme Court's
Apprendi opinion to formulate an Apprendi style argument for
use in her direct appeal.

It is undisputed that petitioner did not raise the Apprendi
argument she now advances at any time prior to the filing of
this motion, and she does not claim that some outside force
impeded her legal defense, therefore, she has not established
cause, and because petitioner has failed to show any cause for
excusing her procedural default, the court need not consider the
issue of prejudice. Smith v. Murray, 477 U.S. at 527, 533, 106
S.Ct. 2661, at 2665, 91 L.Ed.2d 434 (1986).

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